THREE WEEK TIME LAPSE TOO REMOTE FOR SECONDARY VICTIM

The Court of Appeal dismissed a nervous shock claim by a daughter of a woman who died from a pulmonary emboli.  It was accepted that this complication was directly attributable to an injury sustained at work three weeks earlier and from which she was making an apparently good recovery.  The daughter did not see the original injury but she was present at her mother's death and suffered PTSD as a result.

In Taylor v A Novo (UK) Ltd [2013] EWCA Civ 194 the Court of Appeal ruled that the three week interval between the original injury and its fatal sequelae broke the continuity necessary to establish legal proximity for a secondary victim. 

My case commentary is published in the Quarterly Bulletin of Butterworths Personal Injury Litigation Service.

PARTY HOST NOT LIABLE FOR BELLY FLOP INJURY

In Cockbill v Riley [2013] EWHC 656 (QB) Mr Justice Bean held that the parents who hosted an end of GCSE party were not liable for the catastrophic spinal injury sustained by one of their daughter’s guests. 

The guest, an exuberant 16 year old, had attempted a flying belly flop into a shallow paddling pool that had been set up in the garden for the party.  Tragically, the boy made a fatal misjudgment that caused him to land on his head.  There was no evidence to suggest that he had slipped on wet grass.  A moderate amount of drink had been supplied and up to this point, no one had attempted any dangerous stunts of this kind beforehand and neither had any of the guests been overly boisterous.

Bean J commented that allowing the use of a paddling pool at a party attended by 16-year-old friends of the occupier's children does not of itself create a foreseeable risk of significant injury or justifies a formal risk assessment.

My case commentary is published in the Quarterly Bulletin of Butterworths Personal Injury Litigation Service.

EUROPEAN DIRECTIVE SAVES STEEPLECHASE JOCKEY CLAIM

In Hide v The Steeplechase Company (Cheltenham) Ltd and others [2013] EWCA Civ 545 a professional jockey who sustained pelvic and head injuries when his horse stumbled just as it landed after jumping a hurdle in a steeplechase at Cheltenham.  He struck his head on the post of a nearby rail.  He sought compensation from the course owners and organizers.It was alleged that the rails and fencing were positioned too close to the hurdles for safety.

His claim failed at first instance but succeeded on appeal even though he could not establish either (i) that the layout design or maintenance of the course had been negligent or (ii) that there had been a breach of statutory duty - applying the ordinary and natural meaning of Regulation 4 of the Provision and Use of Work Equipment Regulations 1998.  

The Court of Appeal applied a purposive construction of the Framework Directive (89/391/EEC) and the Use of Work Equipment Directive (89/655/EEC) which effectively imposed strict liability in the way it impacted on the interpretation of our domestic regulations regardless of the fact that the hazard presented by the fencing was not reasonably foreseeable.  

This sort of claim would fail in a post s69 Enterprise and Regulatory Reform Act 2013 world (for accidents on or after 1 October 2013), as henceforth it will be necessary establish a breach of the common law duty of care [See my earlier blog: A World Turned Upside Down]. 

A more detailed commentary on this case is published in the Quarterly Bulletin of Butterworths Personal Injury Litigation Service.

ROUNDABOUTS – BIG OR SMALL – SAME RULES APPLY

View of the junction from Starks' perspective

In Starks v Chief Constable of Hertfordshire [2013] EWCA Civ 782 the claimant was hurt when his car was hit on the driver’s side by a police car as he was turning right at a road junction.  This junction would have been a conventional ‘T’ junction but for the fact that a mini-roundabout had been installed.  At first instance, the trial judge allocated liability 45/55% in the defendant’s favour. The trial judge had found that the other car, a police car, had been travelling too fast but well within the 40 mph speed limit for the stretch of road, as it approached the road junction where the accident occurred.  He ruled that Mr Starks should not have moved onto the roundabout when he could see the police car approaching from his right. 

This allocation of liability was criticised by the Court of Appeal. It was more influence by the fact that the police woman driver had attempted to drive straight across the mini white painted roundel at the junction; almost as thought it had not existed. She would have needed to slow down to 20 mph to have circumnavigated the roundel.  This would have reduced the severity of the damage and the injury.  It found the policewoman 65% to blame for the accident. 

Underhill LJ noted that Paragraph 188 of the Highway Code provides that the same rules apply to mini-roundabouts as to normal roundabouts.  In particular, the Code states that vehicles ‘MUST pass round the central markings’.  He deduced that paragraph 188 requires (i) drivers to go round not only the solid roundel but the circles around it and (ii) that driving over the markings is clearly a breach of the Code. 

So the lesson here is that however much we may regret the increasing prevalence of these 'poached egg' roundabouts, they have been installed for a purpose: as a traffic calming / road safety measure.  Although they may look insignificant, we are expected to slow down and to go around them.  We breach the highway code if  we choose to disregard them.

My detailed case commentary on Starks v Chief Constable of Hertfordshire and my analysis of the Court of Appeal’s approach to reversing first instance findings of contributory negligence is published in the Journal of Personal Injury Law which it can be accessed through Lawtel.  A shorter case commentary is published in the Quarterly Bulletin of Butterworths Personal Injury Litigation Service.

7 YEAR DELAY DID NOT DEFEAT CLAIM

In Nicholas v Ministry of Defence [2013] EWHC 2351 (QB), Judge Burrell QC exercised his discretion under s 33 Limitation Act 1933 to allow a claim on behalf of the estate of the deceased who, during her lifetime, had been crippled by the onset of asbestosis in her old age.  She knew her respiratory illness had been caused by her exposure to asbestos from her wartime work assembling gas masks. She acquired this knowledge more than four years before her death from an unrelated condition.

Key factors influencing the court's decision to disapply the statutory limitation period of three years were: (i) the MoD had conceded liability and could establish no prejudice to the cogency of the evidence from the delay, (ii) the victim had not been well enough to issue proceedings, (iii) following her death, the MoD were informed relatively promptly of the prospective claim, (iv) a moratorium had been agreed between the solicitors within a year of the victim’s death and this was in place up to the date proceedings were issued and (v) no prejudice occurred by reason of this additional delay.

My detailed case commentary on Nicholas v MoD and my review of the relevant case law and considerations is published in the Journal of Personal Injury Law in issue 3 of 2013 and it can be accessed through Lawtel.

EX TURPI CAUSA

Drug dealing

We are witnessing a spate of inappropriate  ex turpi causa defences.  Under our common law the courts have a policy that is intended to prevent a criminal from recovering compensation where the loss or injury complained of is inextricably connected with and caused by his own criminal act; its common sense really. This defence is commonly associated with the Latin maxim: ex turpi causa non oratur actio; also, more rarely with ex dolo malo non oritur actio.  In recent years ex turpi causa tends to be routinely cited by defendants whenever a claim is associated with some kind of criminalily.

The ex turpi causa policy is not about punishing miscreants.  Criminals enjoy the same civil rights as the law abiding; we abolished outlawry a while ago.  

Ex turpi causa seeks to avoid the perversity of compensating someone for the direct effects of their own crime.  So in Delaney v Pickett Pickett [2011] EWCA Civ 1532 the defence failed to prevent a passenger (who happened to be involved in drugs dealing) from suing his associate when he injured him through his negligent driving of the vehicle that was transporting their stash of marijuana to the next deal. Their criminal activity was not the cause of the accident; rather, it was the defendant’s negligent driving.  

However, in Joyce v O’Brien and Tradex 2013 EWCA Civ 546, the Court of Appeal upheld this defence against a thief who fell off the back of his uncle’s get-away van.  Joyce had been holding on to a set of ladders that he and his uncle had just stolen, whilst at the same time trying to cling on to the back the van as it sped off from the scene of the crime.  He fell off when his uncle executed a sharp turn at speed and sadly Joyce sustained grave head injuries.  The Court of Appeal rightly took the view that ex turpi causa applied here.

My detailed case commentary on Joyce v O’Brien and Tradex is published in the Journal of Personal Injury Law, where I trace the roots of this defence back to Lord Mansfield’s judgment in Holman v Johnson (1775) 1 Cowp 341.  This is one of those judgments that have withstood the test of time well as it remains just as valid today as it did in the 18^th Century.  My commentary explains the principles underscoring this policy defence, the key ingredients necessary for success as well as offering some practical tips.  The JPIL commentary can also be accessed through Lawtel. My earlier commentary on Joyce can also be accessed through Lawtel.

VALUING LOSS OF USE OF A BUS

In West Midlands Travel Ltd v Aviva Insurance UK Ltd [2013] EWCA the Court of Appeal ruled that the conventional ‘standing charge’ basis used for quantifying the loss of use of a commercial vehicle was not appropriate for fleet vehicles that can be replaced by others held in reserve.  Under the traditional 'standing charge' approach, the damages include a notional sum for various overheads notionally associated with the operation of the vehicle, including even the cost of running its staff canteen!   

West Midlands operated a large number of buses. It was unable substantiate any actual loss of profit as it always had a number of vehicles kept in reserve.  Rather than adopt the traditional kitchen sink approach, the court decided to base its award on an amount equivalent to the interest on the notional capital value of the vehicle plus an allowance for depreciation.  This reduced the loss of use claim by two thirds!

My full case commentary will be published in the Autumn edition of BPILS Quarterly Update.